Fiascos and Matters of Degree

March 27, 2014
posted by Bob Bauer

The most recent issue of Election Law Journal offers interesting writing on lobbying. One of the articles, Money, Priorities and Stalemate: How Lobbying Affects Public Policy, is a study by Professor Frank R. Baumgartner and several colleagues who show that there is an unimpressive relationship between the resources devoted to lobbying and particular outcomes that the lobbyists had hoped to bring about. The authors do not suggest that the money put behind lobbying has no effect, only that we should understand better the nature of the effect and its limits. A number of factors, they argue, are relevant to the measurement of lobbying success, including the capacity of lobbyists to hold the attention of lawmakers who must choose among a broad range of issues in allocating their time. The co-authors of this study also stress that many of the advantages possessed by well-established interests are already “baked in” to public policy, and therein lies a major advantage: that it is much harder to change a policy than to establish one.

What is most important about this study is that it draws attention again to the fact that the relationship of money to political outcomes of any sort—outcomes in government, or outcomes and campaigns—is complex. Money, Priorities, and Stalemate defines lobbying resources broadly to include PAC contributions, and it notes that the studies focused on campaign contributions alone have also failed to find the connection between the amounts spent and the success achieved that is generally supposed.  Little of this learning has leached into the public debate over lobbying and campaign finance law:  the complexities of the relationship of money and outcomes are largely ignored and oversimplification is the order of the day.

This tendency toward over-dramatization complicates the business of isolating what is distinctive about money in politics as a public policy concern and finding enough common ground to address it productively. In place of this useful discussion is, all too often, an exchange of vitriol and hyperbole, and a refusal on the various sides of the debate to entertain opposing positions.

We’ve seen a complaint along these lines by Francis Barry of BloombergView, who denies that super PACs are all that new and likens them to the “527s” of yore. And he is certainly right that over the course of campaign finance history, one vehicle or another has been established to facilitate what the organizers viewed as their right to raise and spend unlimited amounts of money to advance their political positions. Citizens United and SpeechNow did make a considerable difference, by bringing this activity out of the shadows and putting it at the center of the indisputably legal, constitutionally protected political activity. This is no small change.

But it is also true that each and every development in the law is accompanied by what Barry uncharitably refers to as “political hysteria” about the likely consequences—and what might more fairly be described as overreaction. And one does not have to lapse into hysteria or indulge in overreaction to believe that there are public policy issues that the role of money in politics fairly calls on legislators to address.  The conversation doesn’t go very far, however, if the stakes are viewed in apocalyptic terms and any move to middle ground comes under immediate suspicion of being a sell-out of principle, or submission to sinister interests.

The press and punditry are already well prepared for more of the same strong emotions as the issuance of the McCutcheon case draws closer. Typical of this escalating excitement is this headline from a piece in Salon: Scalia’s looming fiasco: Obscure new SCOTUS case may be worse than Citizens United.  The article features an interview with Adam Lioz, counsel for Demos, who co-authored the brief his client submitted in McCutcheon along with other progressive organizations and who generally lays out his position in with care and restraint. Then comes this exchange, when interviewer and interviewee explore the consequences of liberalized political party contribution limits:

Q: Justice Scalia said in [oral] argument that it was “fanciful to think that the sense of gratitude that an individual” elected official feels “because of a substantial contribution” to the RNC or DNC is “any greater” than for a massive contribution to a PAC trying to re-elect them that would already be legal. Is he wrong? 

A: Well, I think Justice Scalia’s statement demonstrates the fallacy at the heart of Citizens United—in that what he’s pointing to is the very real phenomenon that when wealthy contributors make million-dollar contributions to outside groups like super PACs, that there is certainly a level of gratitude and appreciation generated amongst the folks they’re aiming to support.

But these things are also a matter of degree…

It is not wrong to take seriously a shift in the law, and in the threat of corruption political contributions may pose, if the change is “a matter of degree.” But it is harder to make of a “matter of degree” what Salon refers to as a “looming fiasco” in the event that McCutcheon wins his case.  And how much this difference in degree will translate  into the lobbying successes of well-financed interests, which is the question Baumgartner et al addresses, is also worth considering in judging the stakes in McCutcheon.

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